Thursday, 21 February 2013

X v Austria Judgment

It is my pleasure once again to welcome a guest post by dr Paul Johnson of the University of York. This time he has written a guest post on this week's judgment in X and Others v. Austria, about adoption for same-sex unmarried couples. Let me also take the opportunity to point to his newly started blog entitled the ECHR Sexual Orientation blog. This is his guest post on the judgment:

X.
and Others v Austria

by Paul Johnson

On
19th February 2013, the Grand Chamber of the European Court of Human
Rights issued an important judgment in respect of a complaint
about discrimination on the grounds of sexual orientation in second parent
(step parent) adoption. In X. and Others
v Austria three applicants, a female same-sex couple and the biological
child of one of the partners, complained that their legal exclusion from second
parent adoption constituted discrimination contrary to Articles 8 and 14 of the ECHR.

Second
parent adoption is available to married and unmarried opposite-sex couples in
Austria, but unavailable to same-sex couples because of Article 182(2) of the
Civil Code (which requires second parent adoption to be formed within
opposite-sex couples). The complaint in
X. and Others v Austria is different to the complaints brought in previous
adoption cases concerning sexual orientation heard by the Court which concerned
discrimination in adoption by single individuals (Fretté v France;E.B. v France) and discrimination between
opposite-sex married couples and same-sex couples in civil partnerships (Gas and Dubois v France). In the present
case, the key complaint was that same-sex couples were differentiated from both
unmarried and married opposite-sex couples.

The
background to the complaint was the refusal by the domestic Austrian courts to
allow one of the applicants (the first applicant) to adopt the biological child
(the second applicant)of her partner (the third
applicant). Whilst the proceedings in the domestic courts were lengthy and
encompassed a number of important issues – not least, the refusal of the
child’s biological father to consent to the adoption – the consistent complaint
advanced by the applicants was a principled objection to the existence of
Article 182(2) of the Civil Code. Their complaint to the Court was about the blanket
exclusion of same-sex couples from second parent adoption by Article 182(2)
rather than about any aspect of the merits of their individual adoption
application.

The
Court held by a majority (ten to seven) that there had been a violation of
Article 14 taken in conjunction with Article 8 of the Convention on account of
the difference in treatment of the applicants in comparison with unmarried
opposite-sex couples in which one partner wished to adopt the other partner’s
child; and, unanimously, that there had been no violation of Article 14 taken
in conjunction with Article 8 when the applicants’ situation was compared with
that of a married couple in which one spouse wished to adopt the other spouse’s
child.

There
are a number of interesting facets to the judgment, and I will concentrate only
on three issues here.

The
key reason why the complaint succeeded in the Court was the applicants’
comparison of their family life with that of unmarried opposite-sex couples. In
applying its standard ‘tests’ to determine whether a difference in treatment
amounts to discrimination under Article 14, the Court accepted that the
applicants were in an analogous position with an
unmarried opposite-sex couple, that there was ‘no doubt that the applicable
legislation leads to a distinction between unmarried different-sex and same-sex
couples in respect of second-parent adoption’ (§ 116), and that the ‘difference
was inseparably linked to the fact that the first and third applicants formed a
same-sex couple, and was thus based on their sexual orientation’ (§ 130). The
Court reiterated its now established case law that differences based on sexual
orientation require particularly serious reasons by way of justification, that
where a difference of treatment is based on sexual orientation a State’s margin
of appreciation is narrow, and emphasized (a point which is sometimes
explicitly missing from its judgments) that differences based solely on
considerations of sexual orientation are unacceptable under the Convention.

The
chief focus of the Court’s judgment is on the fact that ‘the applicants were
directly affected by the law complained of’ (§ 126) and the major substance of
its review is directed to the ‘narrowly defined issue of alleged discrimination
between unmarried different-sex couples and same-sex couples in respect of second-parent
adoption’ (§ 134). This approach was criticized by the seven dissenting judges who
argued that the Court’s consideration of the impugned legislation was inappropriately
abstract and failed to pay sufficient attention to the substantive issues
involved in the adoption case at hand (such as the best interests of the child).
Another point of criticism advanced by the dissenters was thatthe
Court had inappropriately employed its ‘living instrument’ doctrine to reach a
judgment that went ‘beyond the usual limits of the evolutive method of
interpretation’. This claim may have been encouraged by the fact that, whilst the
Court stated that it was ‘not called upon to rule on the issue of second-parent
adoption by same-sex couples as such, let alone on the question of adoption by
same-sex couples in general’ (§ 134), it did make a number of striking remarks,
such as ‘the Austrian legislation appears to lack coherence’ (§ 144), which
implicitly urge wide reform. Yet, in respect of the
issue concerned – the existence of legislation that differentiates between
unmarried same-sex and opposite-sex couples – the Court’s approach to its
review and the judgment it reached are consistent with its established case law
on discrimination on the grounds of sexual orientation.

Reassertion of a
heteronormative view of marriage

Aside
from the view expressed by Judge Spielmann in his concurring opinion – in which
he re-stated his argument first expressed in Gas and Dubois v France that unmarried same-sex couples are in a comparable position to
opposite-sex married couples but, lamentably, went on to conclude that he did
not feel it necessary to examine the issue – the Court unanimously determined
that unmarried same-sex couples are not in a comparable position to married opposite-sex
couples and, therefore, are not discriminated against when they are denied legal
rights reserved for married couples. The Court stated that it found it ‘appropriate
to repeat and confirm’ its view that ‘Article 12 of the Convention does not
impose an obligation on the Contracting States to grant same-sex couples access
to marriage’, ‘[n]or can a right to same-sex marriage be derived from
Article 14 taken in conjunction with Article 8’, that ‘[w]here a State
chooses to provide same-sex couples with an alternative means of legal
recognition, it enjoys a certain margin of appreciation as regards the exact
status conferred’, and that ‘marriage confers a special status on those who
enter into it’ (§ 106). The significant emphasis on this interpretation of
Article 12 in the judgment, and the unanimous agreement on this line of
reasoning, is a clear sign that the Court intends no evolution in its case law
on same-sex marriage in the near future.

As
I have argued elsewhere, the margin of appreciation granted by the Court to
contracting states to maintain the heterosexual exclusivity of marriage under
Article 12 perpetuates a wide range of discrimination suffered by same-sex
couples and their families. Gay men and lesbians cannot complain under Article
14 about discrimination that results from being outside the ‘special status’ of
marriage because such exclusion is permitted under Article 12. Given that
same-sex couples are excluded from marriage in the majority of Contracting
States, and therefore cannot gain access the legal rights associated with
marriage, the Court effectively underwrites Contracting States’ ability to
maintain forms of discrimination solely on the grounds of sexual orientation.
The Court’s apology for discrimination on the grounds of sexual orientation in
respect of marriage flies in the face of the conclusions reached by the highest
courts of other jurisdictions, such as South Africa, which argue that it is
precisely because of the ‘special status’ of marriage that makes differential
treatment on the grounds of sexual orientation in relation to it one of the
most pernicious form of discrimination in contemporary societies. One day it
will become common to look back on the Court's restrictive heteronormative
interpretation of Article 12 with the same mix of incredulity and horror that
is produced when reading statements like ‘the Convention permits a High
Contracting Party to legislate to make homosexuality a punishable offence’ (W.B. v Germany, 1955).

The approach to consensus
analysis

The
Court’s approach to consensus analysis in this case exemplifies and explicates
all that is problematic about this aspect of the Court's methodology. I have
argued elsewhere that the Court’s judgments show that consensus analysis is a
device through which ‘reality’ is selectively represented in order to add
weight to its moral reasoning. The Court does not fabricate or ‘make up’
consensus but what counts as consensus is always significantly influenced by
the moral standpoints adopted by the judges sitting in each individual case.

The
question of consensus was particular prominent in this case because the Austrian
government had asserted that Contracting States should have a wide margin of
appreciation on the issue of second parent adoption by same-sex couples given
that only ten Council of Europe member States permit it and, consequently,
there is no European consensus. The Court dismissed this claim by arguing that the only relevant sample on which to base an analysis of consensus was of those ten states that permit second parent adoption by unmarried couples, six of which treat opposite-sex couples and same-sex couples in the same manner and four who adopt the same position as Austria. By adopting this narrow sample of states as
the basis for consensus analysis the majority was able to claim that ‘no
conclusions can be drawn as to the existence of a possible consensus among Council
of Europe member States’. I have some sympathy with the dissenters’ claim that
this conclusion is ‘to say the least, curious’ because ‘the States in question
are sharply divided and that there is therefore no consensus’. Furthermore, I think it understandable that the dissenters argued that
the ‘somewhat strange reasoning’ of the majority ‘is explained by the fact that
the method used may in reality not be the right one’.

This
argument over the appropriateness of the sample is understandable if one accepts that the majority selected a sample in
order to, as the dissenters argue, disregard‘a clear trend whereby the great majority of the States Parties
currently do not authorise second-parent adoption for unmarried couples in
general, still less for unmarried same-sex couples’. The dissenters call the majority’s choice of sample ‘unduly
technical – and hence reductive’ but I think a better
description of it would be ‘expedient’. This is not to say that I agree with
the dissenters’ argument that it would have been more ‘appropriate and
simpler to speak in terms of a “trend”’ – a view that ultimately
underpins their judgment that the absence of any consensus in international law
should have prevented the applicants’ from bringing a successful complaint
under the Convention. Rather, my point is
that the Court would be better to dispense with the issue of consensus
altogether in cases such as this and apply the established principle that when
it comes to issues of discrimination on the grounds of sexual orientation under
Article 14 a State’s margin of appreciation is narrow and that, therefore, the
practice of other Contracting States is of little concern. This would reduce
the uncertainty and variability that consensus analysis produces in the Court’s
approach – after all, had two of the majority joined the dissenters in their
view that a ‘trend’ approach was preferable to the ‘narrow’ sample selected,
the outcome of the judgment would have been different – and remove the need to
consider majoritarian practice when examining alleged violations of the fundamental
rights of minority groups.

A
good judgment?

The Court’s judgment must ultimately be
regarded as positive because it recognizes that laws in Austria and other Contracting
States that currently exclude same-sex couples from second parent adoption
whilst affording it to unmarried opposite-sex couples create discrimination in
violation of Convention rights. These Contracting States will be required to
amend legislation that is now in breach of the Convention. Such incremental advances
in ending discrimination against gay men and lesbian are always very welcome.

Yet the judgment, as is so often the case
with judgments issued by the Court in respect of sexual orientation complaints,
is also problematic for a number of reasons. A central concern must be the strong
restatement of the principle that the differential treatment of unmarried
same-sex couples and opposite-sex married couples will not amount to
discrimination under the Convention. This leaves Contracting States free to
maintain a situation in which only heterosexual couples have access to marriage
and, consequently, to the wide range of legal rights that flow from it.

X.
and Others v Austria therefore represents a
significant evolution of the principle of non-discrimination in respect of
sexual orientation between unmarried couples, whilst further legitimizing and
protecting the discrimination that results from the exclusion of gay men and
lesbians from marriage.